United States v. Dixon

United States Court of Appeals
For the First Circuit
No. 14-1124
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL DIXON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Crystal S. Yang, Special Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.
May 22, 2015
HOWARD, Circuit Judge. Defendant Samuel Dixon was
convicted of being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1) after police
executed a search warrant for his apartment and found a pistol and
eight rounds of ammunition. Dixon appeals his conviction on
several bases. First, he argues that the affidavit used to support
the search of his person and apartment was insufficient to
establish probable cause and so the trial court erred in denying
his motion to suppress. Second, he argues that his conviction
violates the Commerce Clause because the government did not prove
the interstate commerce element of the felon-in-possession charge
and so the court erred in denying his motion for judgment of
acquittal. Third, he argues that the district court's jury
instructions concerning the interstate commerce element were
erroneous. We find no merit in his arguments and affirm.
I.
On February 11, 2011, Boston Police Detective Michael
Ross filed an affidavit in support of two search warrants: one for
Dixon's person and one for 12 York Street, Apartment 1 in the
Dorchester neighborhood of Boston. The affidavit first recounted
Detective Ross's extensive experience with drug investigations,
then detailed his investigation into a suspected drug trafficking
scheme in the Dorchester/Roxbury area.
-2-
The affidavit noted that Ross had received information
from a confidential informant (CI) "[w]ithin the last few months"
that a black male with short hair who was approximately forty years
old, six feet tall, and 200 pounds was selling crack cocaine in
that area. The CI had purchased crack cocaine from that man in the
past. The CI provided Ross with the phone number he had used to
contact the suspect and purchase drugs. The CI also told Ross that
the suspect drove a red Ford SUV.
The affidavit stated that this CI had provided Ross's
unit with "reliable information in the past that ha[d] led to the
arrests and convictions of individual(s) for violation of the drug
laws and also the seizure of drug(s), money, firearm(s) and
ammunition." Ross explained that he had intentionally excluded
details about those prior investigations from the affidavit in
order to protect the CI from harm and ensure that the Boston police
would be able to "cultivate future informants."
The affidavit then detailed a series of controlled buys
during which the CI had purchased what appeared to be drugs from
the suspect. During the first controlled buy, which took place
"[w]ithin the last few months," officers searched the CI to
establish that he was free of contraband or money, then had him
call the suspect to arrange a purchase. Officers provided the CI
with money, and the CI then proceeded to a "meet location." The
police followed the CI and observed the suspect's arrival.
-3-
Officers watched the suspect make an exchange with the CI following
a brief conversation and then followed the suspect to York Street
in Dorchester. The CI reconvened with Ross and gave him the
substance that he had purchased. Ross's "training and experience
led [him] to believe the items(s) handed to [him] by [the CI] was
a quantity of crack cocaine."
Two additional, nearly identical controlled buys were
conducted, one "[w]ithin the last couple of months" and one
"[w]ithin the last ninety-six hours." Before the latter two buys,
officers followed the suspect from 12 York Street to the meet
location and also followed him back to York Street after the
transaction concluded. The affidavit did not say that the officers
saw an exchange between the CI and the suspect during either of the
later buys, but afterward the CI handed Ross a substance that Ross
believed was crack cocaine.
The affidavit described other efforts to confirm the CI's
information. After the first controlled buy, Ross observed a red
Ford Expedition, matching the CI's description of the suspect's
vehicle, parked in the driveway at 12 York Street. Ross ran the
Ford's plates and determined that it belonged to a man named Samuel
Dixon, age 43, with an address of 12 York Street, Apartment 1.
With that name in hand, Ross obtained a photograph of Dixon, and
the CI identified him as the person from whom he had purchased
cocaine. Dixon's driver's license listed his address as 12 York
-4-
Street, Apartment 1, and Ross observed Dixon driving the red Ford
SUV in the area on several occasions. Ross also called the
telephone number that the CI had provided, which directed him to
the voicemail of "Mr. Dixon." Finally, Ross confirmed with the
area utility provider that Dixon was the listed subscriber at 12
York Street, Apartment 1, with a phone number matching the one the
CI had provided.
As to Dixon's apartment, the affidavit stated that, based
on Ross's "training and experience" and the three controlled buys,
and based on his observations of Dixon "entering and/or exiting 12
York St. . . . before and/or after the purchases of crack cocaine,"
Ross believed Dixon was "conducting a delivery service of crack
cocaine" and using his apartment "as his base of operation." Ross
"believe[d] items used in the cooking, packaging and sale of crack
cocaine" would be found there.
The two warrants were issued on February 11, 2011, and
executed on February 16, 2011. Police stopped Dixon in his Ford
Expedition less than a mile away from 12 York Street and informed
him of the warrant. They searched Dixon, found no contraband, and
took him to his apartment. Once there, the officers gave Dixon
Miranda warnings and asked him if there were drugs or firearms in
the apartment. He told them that there were drugs in his dresser
and a firearm in either a toilet or his closet. The officers
-5-
searched these locations and found drugs, drug paraphernalia, a
firearm, and ammunition.
Dixon was charged with possession with intent to
distribute cocaine, see 21 U.S.C. § 841(a), and being a felon in
possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1).
He moved to suppress the fruits of the search on the same grounds
he raises here -- that the affidavit lacked sufficient facts to
satisfy the probable cause requirement -- but the district court
denied the motion.1 Dixon was tried on the firearm charge and
convicted by a jury.2 This appeal followed.
II.
Our review of a district court's denial of a motion to
suppress is plenary. United States v. McCarthy, 77 F.3d 522, 529
(1st Cir. 1996). Where our independent assessment of a suppression
motion requires us to review the sufficiency of an affidavit
supporting a search warrant, however, we afford an ample amount of
deference to the issuing magistrate's finding of probable cause.
See United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005); see
also Illinois v. Gates, 462 U.S. 213, 236 (1983) ("[W]e have
repeatedly said that after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of de novo
1
Dixon also moved for a Franks hearing. On appeal he does
not challenge the district court's denial of that motion.
2
The government dismissed the drug charge before trial.
-6-
review."). Accordingly, we will reverse "the magistrate judge's
initial evaluation . . . only if we see no substantial basis for
concluding that probable cause existed." Ribeiro, 397 F.3d at 48
(internal quotation marks omitted).
"A warrant application must demonstrate probable cause to
believe that (1) a crime has been committed -- the 'commission'
element, and (2) enumerated evidence of the offense will be found
at the place searched -- the so-called 'nexus' element." United
States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999). "Where, as here,
the basis for the magistrate's probable cause finding was
information provided by an unnamed information, the affidavit must
provide some information from which the magistrate can assess the
informant's credibility." United States v. Greenburg, 410 F.3d 63,
67 (1st Cir. 2005).
Our inquiry is a "practical, common-sense" one, Feliz,
182 F.3d at 86 (quoting Gates, 462 U.S. at 238), that takes into
account the "totality of the circumstances," United States v.
Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) (internal quotation
marks omitted). "[T]he facts presented to the magistrate need only
'warrant a man of reasonable caution' to believe that evidence of
a crime will be found." Feliz, 182 F.3d at 86 (quoting Texas v.
Brown, 460 U.S. 730, 742 (1983) (plurality opinion)). "Probable
cause does not require either certainty or an unusually high degree
of assurance." United States v. Clark, 685 F.3d 72, 76 (1st Cir.
-7-
2012). Rather, "[p]robability is the touchstone." Khounsavanh,
113 F.3d at 283 (quoting United States v. Aguirre, 839 F.2d 854,
857 (1st Cir. 1988)) (internal quotation marks omitted).
Dixon's basic argument is that the affidavit was not
specific enough as to the informant's reliability or the
conclusions that Dixon had committed a crime or that drugs would be
found at the York Street apartment. He also faults the failure to
do a field test.
We are satisfied that Ross's affidavit was sufficient to
provide probable cause as to both the commission and nexus
elements. The affidavit provided numerous facts from which a
magistrate could have easily concluded that the CI who advised Ross
of Dixon's illegal drug sales was credible. First, Ross "met with
the informant in person on several occasions. . . . This sort of
face-to-face contact between the agent and informant supports the
informant's reliability." Greenburg, 410 F.3d at 67. Second, the
CI had given Ross fruitful tips in the past. See, e.g., United
States v. Tiem Trinh, 665 F.3d 1, 10-11 (1st Cir. 2011). Third,
because of Ross's extensive contact with the CI, Ross would have
been able to hold the CI responsible had he provided false
information, which created an incentive for the CI to tell the
truth. See id.; Greenburg, 410 F.3d at 67. Fourth, the CI, in
describing his purchases from Dixon, provided "[a] specific, first-
hand account of possible criminal activity" -- "a hallmark of a
-8-
credible tip" -- and in doing so "implicated himself in the
wrongdoing." Greenburg, 410 F.3d at 67-68.
Fifth, Ross independently corroborated facts that he had
learned from the CI. "'[C]orroboration of even innocent activity
reported in the tip may support a finding of probable cause.'" Id.
at 69 (alteration in original) (quoting United States v. Perez, 67
F.3d 1371, 1383 (9th Cir. 1995)). Here, not only did Ross
corroborate innocent facts about Dixon -- such as, for example, his
phone number and the type of car he drove -- he also corroborated
the CI's statement that Dixon sold drugs through the three
controlled buys, which were carefully monitored and regulated to
minimize the chance that the CI could have falsely implicated
Dixon. "[A] properly conducted controlled buy is formidable
evidence to support a search." United States v. Genao, 281 F.3d
305, 308 (1st Cir. 2002). A field test of the substance suspected
to be illegal drugs is not per se required. See United States v.
Dessesaure, 429 F.3d 359, 368-69 (1st Cir. 2005).
Finally, Ross was highly experienced in the drug
trafficking field, having participated in over 1000 drug
investigations during his sixteen-year tenure in the Boston police
Department. "[T]he issuing judge making a probable cause
determination 'may credit the experience and pertinent expertise of
a law enforcement affiant in evaluating the authenticity of the
informant's description of the target's modus operandi.'" Tiem
-9-
Trinh, 665 F.3d at 12-13 (quoting United States v. Taylor, 985 F.2d
3, 6 (1st Cir. 1993)). Ross's extensive experience buttresses our
conclusion that the magistrate reasonably found that the CI's
information was reliable. See id.
The magistrate judge did not err in concluding that there
was a reasonable probability that evidence of Dixon's criminal
activity would be found at 12 York Street, Apartment 1.3 Dixon was
registered for utilities there, his driver's license listed that
address as his residence, and Ross saw him driving around the
residence on numerous occasions. In drug cases, there is often
probable cause to believe that evidence of the crime will be found
where the suspected drug dealer lives, at least where, as here,
"[n]o other residence or drug-dealing headquarters of [the
defendant's has been] identified." See Feliz, 182 F.3d at 88.
Here there is even more. Officers observed Dixon returning to 12
York Street immediately after all three controlled buys and
observed him leaving there to go to the last two controlled buys.
There was ample probable cause to believe that Dixon kept drug-
related materials at his York Street apartment. See Ribeiro, 397
F.3d at 52.
Dixon protests that the affidavit "reported no
observations of [him] carrying anything from or into the building"
3
Dixon does not challenge the nexus between Ross's affidavit
and the warrant to search his person.
-10-
and "contained no observations of [him] engaging in other
activities deemed to be drug related in or in the vicinity of" his
apartment. But the probable cause inquiry requires only a "fair
probability" -- not certainty -- that evidence of a crime will be
found in a particular location. See, e.g., Feliz, 182 F.3d at 86
(citation omitted).
The court correctly denied the motion to suppress.4
III.
Dixon also argues that the government did not establish
the interstate commerce element of the felon-in-possession charge
because the district court erred in instructing the jury on that
element. But, as Dixon candidly concedes, his arguments are
squarely foreclosed by our precedent in United States v. Corey, 207
F.3d 84 (1st Cir. 2000). He raises them only to preserve them for
further review.
Under Corey, Section 922(g) requires only that a
defendant have possessed a firearm in a state other than the one in
which it was manufactured, id. at 88 -- that is, that the defendant
have possessed a firearm that has crossed state lines at some
point. See also Scarborough v. United States, 431 U.S. 563, 577
4
Below, Dixon also filed a motion to suppress statements he
made to police while detained during the execution of the search
warrants. On appeal, he only cursorily challenges those statements
as the tainted fruits of his arrest and the subsequent searches.
Because probable cause existed, however, this argument necessarily
fails.
-11-
(1977) (finding that an earlier version of § 922(g) embodied only
a "minimal nexus requirement"). The district court instructed the
jury accordingly, and the government presented evidence at trial
that the gun found in Dixon's home in Massachusetts was
manufactured in Ohio and the ammunition was manufactured in either
Connecticut or Arkansas. The instructions were correct and the
government met its burden. No more was required.
IV.
We affirm the judgment of the district court.
-12-